R v Dighton - [2018] QCA 354

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dighton [2018] QCA 354

PARTIES:

R
v
DIGHTON, John William
(appellant)

FILE NO/S:

CA No 46 of 2018
DC No 127 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 21 February 2018 (Lynham DCJ)

DELIVERED ON:

18 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2018

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted on two counts of rape – where the complainant suffered from an intellectual disability – where the appellant submitted that her evidence was unreliable given that disability – where it was further submitted that there were various inconsistencies and contradictions within the evidence of the complainant that should have led to her evidence being rejected – where it was also submitted that the complainant’s statement was influenced by the way in which it was taken by the police and that her conduct in continuing to see the appellant was inconsistent with her account of being raped – where the appellant made particular admissions in a field interview – whether the verdicts were unreasonable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant advanced the contention that the prosecutor misled the jury with two statements, one that mischaracterised the complainant’s disability, and one where she was characterised as an immature adult – whether the conduct of the prosecutor caused a miscarriage of justice

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Gathercole[2016] QCA 336, cited
R v PBA[2018] QCA 213, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
J A Geary for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Morrison JA and the order his Honour proposes.
MORRISON JA: After a three day trial the appellant was convicted on 21 February 2018, on two counts of rape. He challenges his convictions on the grounds that the verdicts were unreasonable and cannot be supported by the evidence.
The appellant’s outline identifies a number of matters, including detailed references to the transcript, which he contends are relevant to the appeal. The document is not as clear as it could be, though this is perhaps understandable given that the appellant is representing himself. Doing the best I can, the arguments seem to be identified as follows:
(a)the complainant’s evidence was unreliable given her intellectual disability;
(b)there were various inconsistencies and contradictions within the evidence of the complainant that should have led to her evidence being rejected as unreliable;
(c)the complainant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dighton

Details

AGLC: R v Dighton [2018] QCA 354
Case: [2018] QCA 354
Decision Date: 18 December 2018

CaseChat Overview and Summary

In the case of R v Dighton, the appellant was convicted on two counts of rape involving a complainant who suffered from an intellectual disability. The appellant challenged the verdict, asserting that the complainant's evidence was unreliable due to her disability, and further argued that there were inconsistencies and contradictions within the complainant's evidence that should have led to its rejection. The appellant also claimed that the complainant's statement was influenced by the manner in which it was taken by the police, and that her conduct in continuing to see the appellant was inconsistent with her account of being raped. Additionally, the appellant submitted that admissions made during a field interview should have precluded a conviction. The court was tasked with determining whether the verdicts were unreasonable or insupportable in light of the evidence presented.

The court examined the complainant's evidence, which was largely consistent across her police statement, pre-recorded evidence, and cross-examination. The jury, unlike the appellate court, had the advantage of hearing the complainant's evidence in conjunction with that of the appellant and other witnesses. The court noted the directions given to the jury by the trial judge, emphasizing the need to scrutinise the complainant's evidence carefully due to her intellectual impairment and the reliance of the prosecution case on her testimony. The jury was directed to consider the complainant's capacity to give or withhold consent despite her impairment and to assess the truthfulness and reliability of her evidence in light of any reasonable doubts. The court concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and thus the appeal was dismissed.

The appellant also raised concerns about the conduct of the prosecutor, alleging that two statements made by the prosecutor mischaracterised the complainant’s disability and portrayed her as an immature adult. The appellant argued that these statements could have misled the jury, leading to a miscarriage of justice. However, the court did not find these submissions to be persuasive, and thus these grounds of appeal were also rejected.

The appeal was ultimately dismissed, with the court affirming the jury's verdict and upholding the appellant's convictions on the two counts of rape.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, as was said by this court in R v PBA,[8] in the course of elucidating the applicable principles:“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”Evidence at the trial[8][2018] QCA 213 at [80]; citing R v Clapham [2017] QCA 99 at [4].Evidence of the complainant The complainant’s police statement was tendered as an exhibit. Its contents were affirmed by the complainant. Since that is her first official account of what happened it is appropriate to start with that document. The complainant was a 41 year old woman who has, since birth, suffered from a form of autism. She lived in a unit immediately next door to one occupied by her parents. Because of her condition, she was reliant on her parents in a variety of ways, including general assistance with living and transport. The complainant said she knew the appellant, having met him at a disability ten-pin bowling league. They formed a friendship which was initiated by the appellant giving her a gift of some Easter eggs. They exchanged mobile phone numbers and eventually friended each other on Facebook. The appellant commenced attending the bowling alley when the complainant was there for her sessions of bowling, and on one occasion he made her a bracelet. The complainant gave evidence that on an occasion before those the subject of the offences the appellant asked her to get into his car so they could have a chat. In the course of that meeting the complainant initiated a kiss following which they both walked back into the bowling alley. The appellant effectively set rules on how they were to behave in public, namely that they had to act like they were friends, they weren’t allowed to hold hands, the complainant was not allowed to lean all over him, nor to kiss him. The complainant described the appellant as having three tones to his voice. The first one was “OK”, the second one was a “mild one” and the third tone was “serious”. She said the third tone made her feel scared when he used it, at which times he “would use the ‘F’ word and yell at me”.[9] The complainant described how the friendship developed, and various aspects of the appellant’s behaviour, including the carry bags that he had, and the contents of them.[10][9]The evidence was contained in Appeal Book 2 (AB) 217. The openings, addresses and summing up are contained in Appeal Book 1 (AB1).[10]AB 218. The complainant described what happened on 31 January 2015, identified as being the night on which certain elections were held. Her father was working at the elections and her mother had gone out with a friend. The appellant came over after cricket. He brought some alcoholic drinks which he put in the fridge, and then went for a shower. He invited the complainant to join him in the shower, but she declined. Afterwards they went to buy some pizzas, returning to her unit where they ate them and watched TV. The complainant then described the appellant suggesting that they “muck around”.[11] When she declined the appellant said “I am not taking no for an answer, we are going to do this”.[12][11]As her evidence developed it became apparent that the complainant used this phrase to refer to sexual interaction of one sort or another.[12]AB 219.

Decision

Reasons for decision

Another example is the appellant’s identification of the complainant’s evidence of what she had told Ms Ford. Having agreed that she told Ms Ford that she and the appellant were sexually involved, and that the appellant did not use condoms, the complainant then denied a series of propositions about matters supposedly told to Ms Ford.[103] Nothing further is made of that contention. There was no other evidence of those conversations, and Ms Ford did not give evidence. The fact that all of those propositions were denied goes nowhere in terms of establishing that those events happened, as the jury were carefully told in their directions.[103]AB 54.Conclusion The learned trial judge gave directions to the jury that they needed to scrutinise the complainant’s evidence with great care before they could accept it or arrive at a conclusion of guilt. That was because of the complainant’s intellectual impairment and the fact that the prosecution case depended entirely upon her evidence. Directions were also given regarding the requirement to consider each account separately, and that if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or other count, that had to be taken into account in assessing the truthfulness or reliability of her evidence generally. They were directed that in such a case they were to consider why they had a reasonable doubt about that part of the evidence, and whether it affected the rest of the evidence. On the issue of consent, that being the main issue in respect of counts 1 and 3, the jury were directed that the fact that the complainant had an intellectual impairment did not mean that she lacked the capacity to either give consent or withhold consent. (That was supported by Dr Hickey’s evidence.) They were directed that when they came to determine whether the prosecution had proved the lack of consent, they were to proceed on the basis that the complainant was a person who had the capability to give consent notwithstanding that she suffered from an intellectual impairment. The jury had the undoubted benefit, which this Court does not, of hearing the evidence from the appellant and the other witnesses and thus hearing that evidence in conjunction with that of the complainant. The complainant’s evidence was substantially consistent from her police statement to her pre-recorded evidence and in cross-examination. It was also consistent with the complaint she had made to her parents some months after the event. Those factors gave the jury advantages which this Court does not enjoy, and which this Court must recognise in performing its role in this appeal. Having assessed the whole of the evidence I am unable to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[104] I am far from persuaded that an innocent person has been convicted.[104]M v The Queen (2011) 243 CLR 400; SKA v The Queen (2011) 243 CLR 400.Complaints about the Prosecutor’s address

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dighton [2018] QCA 354
PARTIES:	R v DIGHTON, John William (appellant)
FILE NO/S:	CA No 46 of 2018 DC No 127 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 21 February 2018 (Lynham DCJ)
DELIVERED ON:	18 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2018
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted on two counts of rape – where the complainant suffered from an intellectual disability – where the appellant submitted that her evidence was unreliable given that disability – where it was further submitted that there were various inconsistencies and contradictions within the evidence of the complainant that should have led to her evidence being rejected – where it was also submitted that the complainant’s statement was influenced by the way in which it was taken by the police and that her conduct in continuing to see the appellant was inconsistent with her account of being raped – where the appellant made particular admissions in a field interview – whether the verdicts were unreasonable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant advanced the contention that the prosecutor misled the jury with two statements, one that mischaracterised the complainant’s disability, and one where she was characterised as an immature adult – whether the conduct of the prosecutor caused a miscarriage of justice M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Gathercole[2016] QCA 336, cited R v PBA[2018] QCA 213, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	The appellant appeared on his own behalf J A Geary for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent